60 tii Concuess, { HOUSE OF REPRESENTATIVES, j Report 
Session. i ■) No. 1882. 


HOUSE RESOLUTION No. 488—GEORGE L. LILLEY. 


January 20, 1909.—Ordered to be printed. 


Mr. Jenkins, from the Committee on the Judiciary, submitted the 

following 

REPORT. 


[To accompany II. Res. No. 500.] 

On the loth day of January the Committee on the Judiciary received 
from the House of Representatives the following resolution: 

Whereas George L. Lilley, a citizen of the State of Connecticut, was duly elected 
and qualified a Member of the House of Representatives, Sixtieth Congress, from 
said State; and 

Whereas the said George L. Lilley was thereafter, in November, nineteen hundred 
and eight, elected, and on January sixtli, nineteen hundred and nine, duly qualified 
and entered upon his duties as governor of the said State: Therefore be it’ 

Resolved, That his name be stricken from the roll and his seat in this House be, 
and is hereby, declared vacant. 

By the direction of the House the resolution was referred to the 
committee for report within ten days. 

Immediately upon the adoption of the resolution by the House the 
committee communicated with George L. Lilley, inclosing to him a 
a copy of the resolution and informing him that he might communi¬ 
cate with the committee in writing or appear in person or by attorney. 

In reply thereto the following letter from George L. Lilley, inclos¬ 
ing a copy of a letter of Governor Woodruff, was received January 
19, 1909. 

State of Connecticut, Executive Department, 

Hartford, January 18, 1909. 

jMy Dear Sir: I have the honor to acknowledge receipt of your favor of January 
15, with inclosed copy of resolution introduced by John W. Gaines. 

Replying to your letter, I beg to say that on December 11, 1908, I tendered my 
resignation as Congressman to Governor Rollin S. Woodruff. The matter was 
referred by Governor Woodruff to the attorney-general, whose opinion it was that 
the statute was mandatory, and that if the resignation was accepted a special election 
to fill the vacancy must be held. It seemed to the governor and to the attorney- 
general that the large expense entailed was a conclusive reason why my resignation 
should not be accepted. The governor, therefore, declined to accept my resignation. 

I felt that the precedent laid down by my predecessor was obligatory upon me as 
governor, particularly in view of the fact that after deducting the time necessary for 
a special election there would be but about one month for a new Member to serve. 
I inclose a copy of Governor Woodruff’s letter. My belief is that the people of Con¬ 
necticut uphold Governor Woodruff’s decision. 

With sincere regards, I am, very truly, yours. 

Geo. L. Lilley. 

Hon. John J. Jenkins, 

House of Representatives, Washington, I). C. 

“C: 










2 


GEOKGE L. LILLEY. 


bECEMBER 21, 1908. 


My Dear Congressman: 1 am in receipt of your letter of December 11, tendering 
your resignation as Representative at large from the State of Connecticut in the 
Sixtieth Congress, to take effect January 5,1909. 

Since receiving your resignation I have given the matter much consideration. The 
day after I received it I asked Attorney-General Holcomb if there is any precedent 
in this State for such act as I then believed would be, and still believe is, i)roper for 
the governor to take in a situation such as this. jNIy idea was then, and still is, that 
I ought not, in full justice to the State, to accept your resignation. If J do not 
accept it there is no vacancy in the office of Representative at large, and it is not 
necessary to hold a special election. If I should accept tlie resignation it would be 
necessary under the terms of the act to hold a sj)ecial election that would require an 
expenditure of a number of thousands of dollars for a term only sixty days in length, 
and I do not think that any citizen of the State who has its best interests at heart 
would consider such an expenditure of money to till an office for that length of time 
justifiable. 

During the interval between receipt of your letter and this writing I have discussed 
this matter with several of the State’s leading men, and in the main they take the 
same view that I do, viz, that it is inexpedient to accept the resignation, thereby 
creating a vacancy and the imperative necessity of holding a special election at large 
expense to the State and for a vei y short term of office. 

I therefore find it necessary to decline to accept your resignation. 

Very truly, yours. 


Rollin S. Woodruff. 


Hon. George L. Lilley, 

Congressman at Large, Hartford, . Conn. 


The following’ letters were received from officers of the House in 
answer to request from the committee for information: 

House of Representatives, Clerk’s Office, 

Washington, I). C., January 10, 1909. 

My Dear Sir: In reply to your favor of January 16, inquiring as to when the Hon. 
George L. Lilley, Member of Congress from Connecticut, drew anything from my 
department, would say that on December 22, 1908, he drew check for his stationery 
in full; and on the 1st day of January, 1909, he/lrew his clerk-hire check in full 
for the month of December. 

Very truly, yours, A. McDoweli,, 

Clerk House of Representatives. 

Hon. John J. Jenkins, 

Chairman of Committee on .Judiciary, House of Representatives. 


House of Representatives, 

• Office Serge ant-at-Arms, 

Washington, I). C., January 16, 1909. 

My Dear Sir: I am in receipt of your communication of January 16, making 
inquiry as to the payment of salary to Representative George L. Lilley, of the State 
of Connecticut, and also as to whether he has drawn his mileage for the second ses¬ 
sion of the Sixtieth Congress. 

In reply I beg to advise you that Representative Lilley has drawn his salary as a 
Member of the House of Representatives up to and including the 4th day of Decem¬ 
ber, 1908, and that on the 4th day of January, 1909, one month’s salary was credited 
up to him, which has not been drawn. 

On the 22d day of December, 1908, Mr. Lilley made application, by letter, for a 
remittance of the mileage due him for the second session of the Sixtieth Congress. 
In answer to this communication he was advised by this office that mileage was pay¬ 
able only when the Member had attended a session of the House, conforming to the 
law which provides that this mileage shall be paid for attendance upon each session 
of Congress. There is therefore at this time to Mr. Lilley’s credit his mileage and 
accrued salary from the 4th day of December, 1908. 

Very respectfully, Henry Casson, 

Sergeant-at-Arms, House of Representatives. 

Hon. John J. Jenkins, 

Chairman Committee on the Judiciary, 

House of Representatives, Washington, D. C, 







GEORGE L. LILLEY. 


3 


„; . The committee find as facts that Georg’e L. Lilley was elected a 
csj Member of this House from the State of Connecticut to the Sixtieth 
(O Congress. 

That the name of George L. Lilley was placed on the roll of 
Members-elect of the Sixtieth Congress. 

That (jeorge L. Lilley performed more or less duties as a Member 
of this House during the first session of the Sixtieth Congress. 

That George L. Lilley has not been in attendance at an}^ time 
during the second session of the Sixtieth Congress. 

That on the 11th day of December, 1908, George L. Lilley tendered 
his resignation as Member of this House to Rollin S. Woodruff, gov¬ 
ernor of the State of Connecticut, to take effect January 5, 1909, 
and that Governor Woodruff declined to accept the resignation. 

That George L. Lilley did not withdraw his resignation as a Membei 
of this House. 

That George L. Lille}^ was elected governor of the State of Connect¬ 
icut and took the oath of office as governor of that State on January 
6,1909; and that ever since he took the oath of office he has been per¬ 
forming the duties of the office of governor of the State of Connect¬ 
icut and has remained at the executive office at Hartford, Conn. 

That on December 22, 1908, he drew his check for his stationery in 
full. 

That on the 1st day of Januarj^, 1909, he drew his clerk hire in full 
for the month of December. 

That George L. Lilley drew his salary as a Member of the House of 
Representatives up to and including the Jth day of December, 1908. 

That on the 22d day of December, 1908, George L. Lilley made 
application by letter for a remittance of the mileage for the second 
session of the Sixtieth Congress. 

What effect did the tendering by George L. Lilley of his resigna¬ 
tion as Member of this House to the governor of the State of Con¬ 
necticut have upon the membership of George L. Lilley in the Sixtieth 
Congress; and if his membership did not cease on the 5th day of 
Januar}^, 1909, what effect did the q>ualification of George L. Lilley as 
governor of the State of Connecticut have upon the membership of 
George L. Lilley in the Sixtieth Congress. 

The Constitution is silent as to how a Member can dissever his mem¬ 
bership. The Constitution anticipates that a vacancy may occur: 

When vacancies happen in the representation from any State, the executive 
authority thereof shall issue writs of election to fill such vacancies. (Clause 4, sec. 2, 
art. 1.) 

The Constitution does not prohibit a Member from holding any 
state office. 

The Constitution does provide— 

That no person holding any office under the United States shall be a member of 
either House during his continuance in office. (Part of clause 2, sec. 6, art. 1.) 

Each House shall be the judge of the elections, returns, and qualifications of its 
own members. (Part of sec. 5, art 1.) 

Each House may * * * punish its members for disorderly behavior, and, with 
the concurrence of two-thfrds, expel a member. (Subdivision 2, sec. 5, art. 1.) 

In voluntary withdrawals from membership in the House of Repre¬ 
sentatives, the practice has not been uniform. The retiring Member 
has resigned on the floor of the House. The retiring Member has 
notified the Speaker in writing and in turn the Speaker of the House 


4 


GEORGE L. LILLEY. 


has notified the governor of tiie State. Then again the retiring Mem¬ 
ber has resigned to his governor and the governor in turn has notified 
the Speaker, and then again the House was not informed of the vacancy 
until the new Member appeared with his credentials, but in all cases 
the act of the retiring Member has been positive to the extent of 
showing that he luid ceased to be a Member of the House of Repre¬ 
sentatives as far as he was concerned. 

By the statute of the State of Connecticut the governor may accept 
the resignation of any officer whose successor, in case of a vacancy in 
office, he has power to nominate or appoint; but there is no statute in 
the State of Connecticut authorizing the governor of that State to 
accept the resignation of a Member of Congress. 

There is no question but what if a Member of the House of Repre¬ 
sentatives tenders his resignation, no matter whether it be to the gov¬ 
ernor of the State or to the Speaker of the House, he becomes ipso 
facto no longer a Member, and therefore it is impossible for a Member 
having tendered his resignation to withdraw same. 

Unless the House of Representatives exercises its power and expels 
a Member, it rests entirely with the Member as to whether or not he 
continues his membership. After he has declared in no uncertain 
terms to the governor of his State or to the Speaker of the House that 
he has resigned, there is nothing that can be done b}^ the Member or 
by the officer to whom the resignation was tendered that will tend to 
continue the membership. The presentation of the resignation is all 
sufficient. It is self-acting. No formal acceptance is necessary to 
make it effective. The refusal of a governor to accept a resignation 
of a Member of Congress can not possibly continue the membership, 
and certainly it is within the power of the House to declare what effect 
the presentation of the resignation had upon the membership. 

It is extremely important in a case like this for the House of Rep¬ 
resentatives to know the status of its Members, the duties and power of 
the House. The person elected owes it to the people in general, and 
his constituents in particular, to be in his seat discharging his public 
duties. 

The House has a right to know whether the name on the roll is that 
of a Member, as bearing upon the question of a quorum. The State 
has a right of representation, denied by nonaction of the House. It 
is the highest duty of the House to settle the status in a case of this 
kind. 

What question of law does the conceded facts present? It is a 
universally recognized principle of the common law that the same 
person should not undertake to perform inconsistent and incompatible 
duties, and that when a person while occupying one position accepts 
another incompatible with the first, ipso facto, absolutely \'acates the 
first office and his title thereto is terminated without any further act or 
proceeding. This incompatibility operating to vacate the first office 
exists where the nature and duties of the second office are such as to 
render it improper, from considerations of public policy, for one per¬ 
son to retain both. There is an absolute inconsistency in the functions 
of the two offices. Member of Congress and go\ernor of the State of 
Connecticait. 

While what is here stated is a common-law doctrine, and it is also 
recognized that there can be no common law ex(.‘ept b}^ legislative 


GEOEGE L. LILLEY. 


5 


adoption, yet it is a principle of law, and the House of Representatives 
can not well refuse to recognize and adopt it. 

As said by the Supreme Court of the United States in Bucher v. 
Cheshire Railroad Company (125 U. S., 555, p. 583): 

There is no common law of the United States, and yet the main body of the rights 
of the people of this country rest upon and are governed by principles derived from 
the common law of England and established as the laws of the different States. 

Assuming that the courts of the United States can not punish for a 
common-law crime or enforce a common-law right, yet there is nothing 
to prevent this House from being govered by a common-law doctrine. 
This feature of the case is very important, because it presents this 
important question: 

Is George L. Lille}’ a Member of this House? If he is a Member of 
this House, the power of the House to deal with him is absolutely 
unlin]ited; if he is not a Member of this House, then the House has 
nothing whatever to do with him. 

If George L. Lilley is a Member of the House, the House has the 
constitutional right to compel his attendance in such manner and 
under such penalties as the House may provide. (Sec. 5, art. 1.) 

The House ought not to be placed in an uncertain condition, leaving 
it to the person to say whether or not according to his interests he 
shall pla}^ fast or loose. If the House needs his presence to help make 
a quorum and he does not want to attend, he can plead that he is not 
a Member. If he wants anything as a Member, he can insist that he 
is not out of Congress, but that he is a Member. 

If he is not a Member by reason of resignation or accepting an 
office that is incompatible, it is not within the power of the chair to 
recognize him. 

There can be but little question but what George L. Lilley resigned 
his membership in this House and that it becarne effective on the 5th 
day of January, 1909, and that being true, it logicall}^ follows that he 
ceased to be a Member at that time; but inasmuch as it seems so clear 
that George L. Lilley ceased to be a Member of the House of Repre¬ 
sentatives upon his acceptance of the office of governor of the State 
of Connecticut, and the question of time is so very brief, that it may 
be well to hold that his seat was vacant January 6, 1909. 

As there is an entire absence of (‘institutional authority, there is 
almost an entire absence of precedents. 

The committee finds that James S. Robinson, a Representative in 
the Forty-eighth Congress from the State of Ohio, was elected to the 
office of secretary of state of the State of Ohio; that Mr. Robinson 
did tender his resignation as a Member of Congress to the governor of 
Ohio, and his resignation was placed on file, and thereafter on the same 
day he was sworn in and duly qualified as secretaiw of state, and from 
that time on he did not assume to be a Member of Congress nor attempt 
to exercise any of the rights or privileges belonging to a Member of 
this body, but on the contrary resided at the seat of government in 
the State of Ohio, in the performance of his duties as secretary of 
state. 

The committee simply recommended that the Clerk of the House be 
instructed to omit his name from the roll of members, because they 
found that he did not claim to be a Member of Congress. (House of 
Representatives, Forty-eighth Congi;ess, second session. Report No. 
2679.) 


6 


GEORGE L. LILLEY. 


In 9 South Carolina Reports, 156, appears the case of the State of 
South Carolina v. Buttz. Buttz was solicitor of the first judicial cir¬ 
cuit of the State of South Carolina, and after being commissioned as 
solicitor he qualified on the 23d of January, 18TT, as Representative in 
Congress from the State of South Carolina. 

The Supreme Court held that the ofiices of state solicitor and Mem¬ 
ber of Congress are incompatible with each other, and that a solicitor 
who accepts the office of Representative in Congress thereby vacates 
his office of solicitor; that where one holding office accepts another 
which is incompatible therewith, he therefore vacates the first. 

The committee is of the opinion that if said George L. Lilley had 
not resigned on the 5th day of January, 1909, by entering upon the 
duties of the office of governor of the State of Connecticut, he ceased 
to be a Member of the House of Representatives of the United States 
on the 6th day of January, 1909. 

The committee therefore recommended as a substitute for the House 
resolution the following resolution: 

''^Re8oh)ed^ That the seat in this House of George L. Lilley as a 
Representative from the State of Connecticut was vacated on the 6th 
day of January, 1909. 

“That the Clerk of this House be, and he is hereby, directed to 
remove the name of George L. Lilley from the roll of Members of 
this House.” 


SEPARATE VIEWS OF RICHARD WAVNE PARKER AND 
JOHN A. STERLING. 

We agree to the resolution. We think the House has the right to 
determine whether the resignation should take effect, and that the 
House should determine that it did take effect. 

It is unnecessary therefore to determine whether the office of gov¬ 
ernor is incompatible with that of Representative, and we reserve any 
conclusion on that question. 


o 


Richard Wayne Parker. 
John A. Sterling. 




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